United States v. Bailey

29 F. App'x 182
Procedural entryThis page is a short order in United States v. Bailey. Read the opinion of the Court — 7 F. App'x 274
Court of Appeals for the Fourth Circuit·Decided February 21, 2002·No. 01-4459·Unpublished

Opinion

OPINION

PER CURIAM.

Ernest Bailey was convicted by a jury of one count of possession of a firearm after *184 having been convicted of a crime punishable by imprisonment in excess of one year, in violation of 18 U.S.C.A. § 922(g) (West 2000). The district court determined that Bailey qualified as an armed career criminal under 18 U.S.C.A. § 924(e) (West 2000), and sentenced him to 210 months imprisonment. He appeals his conviction and sentence.

Bailey first asserts that the district court erred in denying his motion to suppress his post arrest statement. Bailey argues his statement was rendered involuntary because the detective induced Bailey to confess by offering money to Bailey. In reviewing the denial of a motion to suppress, this court “reviews the district court’s factual findings for clear error, and its legal conclusions de novo.” United States v. Photogrammetric Data Servs., Inc., 259 F.3d 229, 237 (4th Cir.2001), petition for cert. filed, 70 U.S.L.W. 3373 (U.S. Oct. 26, 2001) (No. 01-722). In assessing whether a statement was voluntary, “[t]he existence of a threat or an implied promise does not automatically render a confession involuntary. The proper inquiry is whether the confession was ‘extracted’ by the threats or implied promises, ‘however slight.’ ” United States v. Braxton, 112 F.3d 777, 783 (4th Cir.1997) (emphasis in original). A confession is extracted by threats or promises when the defendant’s will is overborne and his capacity for self-determination is critically impaired. Id. Our review of the record convinces us that the district court correctly concluded that, even if the detective informed Bailey of the existence of monetary rewards for information pertaining to armed robberies in the local area, that information was conveyed after Bailey admitted purchasing the firearm in question, and did not influence Bailey’s decision to make this admission.

Bailey next argues that the district court erred in admitting evidence of a shooting incident that occurred several days prior to his arrest, because that evidence was not relevant, not necessary, and its probative value was outweighed by its prejudicial effect. We review a district court’s determination of the admissibility of evidence under Federal Rule of Evidence 404(b) for abuse of discretion. See United States v. Queen, 132 F.3d 991, 995 (4th Cir.1997). A district court will not be found to have abused its discretion unless its decision to admit evidence under Rule 404(b) was arbitrary or irrational. See United States v. Haney, 914 F.2d 602, 607 (4th Cir.1990).

Evidence of other crimes is not admissible to prove bad character or criminal propensity. Fed.R.Evid. 404(b). Such evidence is admissible, however, to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.; see Queen, 132 F.3d at 994. Rule 404(b) is an inclusive rule, allowing evidence of other crimes or acts except that which tends to prove only criminal disposition. Queen, 132 F.3d at 994-95; United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.1988). Evidence of prior acts is admissible under Rules 404(b) and 403 if the evidence is: (1) relevant to an issue other than the general character of the defendant, (2) necessary, (3) reliable, and (4) if the probative value of the evidence is not substantially outweighed by its prejudicial value. Queen, 132 F.3d at 997.

We have reviewed the evidence in question and conclude that the district court’s decision to admit it was not arbitrary or irrational. The evidence was probative of Bailey’s relationship with his girlfriend and his connection to her residence, where the firearm was found. Moreover, the evidence was necessary in light of Bailey’s *185 not guilty plea and the Government’s burden to prove his possession of the firearm. Finally, the district court carefully limited the evidence to that necessary to demonstrate this connection.

Bailey also contends the district court erred in determining that his three previous convictions for robbery with a deadly weapon were separate convictions for purposes of sentencing him under the Armed Career Criminal Act. Bailey asserts his crimes were part of one criminal episode, directed at a single corporate entity. Review of a district court’s application of a statutory sentencing enhancement is de novo. United States v. Letterlough, 63 F.3d 332, 334 (4th Cir.1995). We have held that “convictions occur on occasions different from one another ‘if each of the prior convictions arose out of a “separate and distinct criminal episode.” ’ ” Id. at 335 (quoting United States v. Hudspeth, 42 F.3d 1015, 1019 (7th Cir.1994)); see also United States v. Hobbs, 136 F.3d 384, 388-89 (4th Cir.1998) (“It does not matter for sentencing purposes if the several crimes are part of a larger criminal venture, as long as each constitutes, by itself, a ‘complete and final transaction.’ ”).

In analyzing whether convictions are from separate and distinct criminal episodes, we consider, among other factors, whether the time interval between the crimes underlying the convictions allowed the accused sufficient time to “make a conscious and knowing decision to engage in another” crime. Letterlough, 63 F.3d at 337. In this case, the span of five days between Bailey’s first two robberies, and almost nine months until the third crime, was more than adequate for Bailey to reconsider his conduct and decide whether to engage in further criminal activity. See United States v. Williams, 187 F.3d 429, 431 (4th Cir.1999) (interval of ten to fifteen minutes between assaults sufficient for defendant to reflect and desist).

Moreover, the fact that Bailey pled guilty and was sentenced for all three robberies in the same proceedings does not mandate that the convictions be counted as only one conviction. See United States v. Allen, 50 F.3d 294

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United States v. Bailey, 29 F. App'x 182 (4th Cir. 2002).

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